criminalising photography

CRIMINALISING PHOTOGRAPHY

Jamil likes photography. He is a freelance photo journalist. He actually bought his high resolution camera from three years’ savings. What may seem ordinary comes out extra ordinarily through Jamil’s lenses. Yesterday, as Jamil went about in down town Nairobi, his camera clicked away at what captured his eye. From the rotting fruit on the walk ways, the heaps of rubbish with many colours, to the crow that pecked on rotting flesh and the rowdy matatus that honked their way out of traffic in the mid-morning sun, Jamil’s camera clicked away. He could not have been happier! Then there it was! – A rat crossing road! Jamil focused his camera, adjusted his lenses and clicked away! At the same time, he felt a hand on his shoulder. Still dazed from the excitement of a rat crossing the road, Jamil turned with a smile from one ear to the other to look at who or what was tapping his shoulder.

Clad in a blue shirt and navy blue trousers, the officer told Jamil that he was under arrest for breaking the law. Startled, and going through the difficult transition from being excited to being freaked out, with a confused grin on his lips, Jamil asked the officer, “Which law?”

Jamil should have known better. In this country, asking an officer which law or crime you have committed is a crime itself. And indeed, the officer was infuriated! Angrily, he shouted at Jamil, “Umevunja sheria, kwa hivyo nakupeleka kituo cha polisi”. Meanwhile, a crowd started to gather around. The police officer pushed Jamil forward and held tightly at the waist of his already tight trousers. Off to the police station, Jamil was taken.

At the police station, he is asked to hand in his mobile phone, his wrist watch, his wallet and his most prized possession, the camera. He is thrown into a cell. Evening came.  He is hungry, and angry. Jamil got tired of standing and is already sitting in resignation on the filthy floor. Until now, Jamil doesn’t know what he has done. He however suspects that his ethnicity has everything to do with his arrest. It is not easy being Somali in Nairobi. While his thoughts fly from what shock his family will get when she learns of his arrest and what he can do to break out of his cell, another officer calls him to the door and gives him the option of getting police bond, at a price, of course.

Jamil says he doesn’t have the money, but he can call someone to bring the money. That is when I receive a call from Jamil.

“Hello”

“Hi, Jamil!”

“I am at the police station downtown. I was arrested, I need bond”

Shocked, and getting into the lawyer mode, I ask, “On what charges?”

At the end of the other line, Jamil stutters before he replies, “I don’t know”

“Okay. And how long have you been at the police station?”

“Since around 11am”

“I am on my way”

That’s when I realize I have just committed to go to a police station downtown to bond a friend out of police custody. There is this legal audit I have been working on, but it can wait. It should wait.

Wait. I don’t have a car. I go to Uber, and request for a ride. My ride is three minutes away. I pick my handbag, my note pad, my diary and walk out of the office, down to the parking. I anticipate that my Uber will be arriving as I also get to ground floor. A few seconds after I reach the parking, my Uber arrives.

I am downtown at the police station and my good friend Jamil is nowhere to be seen. He is somewhere in the cells. I ask to see a client who is in their custody. Jamil Mohammed. There is no record of Jamil Mohammed. I say he called me a few minutes ago and said he is here, that he has been here since 11am.

The officer at the front desk calls out to another officer who comes forward from another office from the left. He is told that I am here to see a certain Jamil Mohammed but that the name is nowhere in the Book of Suspects.

“Oo! Jamil. Alikupigia?

“Yes, he called me about 45 minutes ago. He said he was here”.

Ni ule mwingine ambaye alikuwa anapiga picha

They looked at each other and seemed to have a meeting of the minds.

“Eh. Your client was taking pictures in town”, said the front desk attendant who didn’t seem to know my friend was here.

Shocked, but not wanting to show it, I say, “I am his lawyer. I have come to see him”

Tulimwambia aite rafiki au mtu wa familia. Hatukumwambia kuita wakili

I have been to police stations countless times. When you get into the typical lawyer mode, your client suffers for it. I keep quite. Pretend I am not hearing or understanding what they are saying. I think they think I am a fake. Otherwise, if I were a lawyer, I would be banging desks and asking to see a higher power.

But I am a lawyer. I have studied their ways. I know how they think. I can beat them at this, I think. I just have to be right, from all angles. Demeanor; check. Courtesy; check. Professionalism; check. Good attitude; check. A smile (though I am struggling not to make it look fake); check. No need to rush, I make it seem. This is your tuff, but this is my domain, I mockingly think. My thoughts must not reflect on my face.

By the way, if it was not for the unprofessionalism in the police force, I would be a criminal defence attorney. But I simply cannot keep up with their standards. When Michelle Obama said that “when they go low, we go high”, she did not have an idea of how it is to deal with African police.

Kitambulisho?”

I unzip my bag, pick my wallet and present two identity cards: my national I.D and my bar association I.D.

A small door is opened and I am directed to the second door down the short corridor, on the left. I process my friend’s bond. Finally, he is released on bond. No formal charge, no notice on when he may be arraigned.

On our way to the CBD, Jamil complains of racism and discrimination. He says he is tired of being in this country. He says, “Sometimes, I wish I was an ordinary Kenyan. May be a Luhya”.

We laugh. I tell him he was arrested because he was taking pictures. That his ethnicity had nothing to do with the arrest, may be. He is shocked. I can tell because his eyebrows are raised in a very steep curve. His eyes too, are about to pop out of his thin head. How does he do that? I wonder. I laugh at his eyebrows. He laughs in return, because I have laughed, may be. It is then that he shows me the pictures on his camera. Rubbish has never been damped in more coloured heaps! It’s ugly, but there is a beauty about it, the kind that comes with colour. The matatus in his pictures seem to have a life of their own. Their head lamps seem like eyes. The tarmac is so trodden it speaks of its sadness and oppression. And that rat! Did you know that rats have whiskers? City rats are street wise. This rat is crossing the road, and I wonder to where. May be, to shop at the newest garbage damp, I think to myself. The pictures are over and I pass the camera back to him.

We don’t talk about it again.  But I know he is broken on the inside: he spent the day in a police cell, not primarily because he is Somali, but because he was taking pictures.

To note:

This is not to incite any one: It is not you duty to succumb to a tyranny where photography is criminal. We must reject unjust laws. Capturing passionate moments is freedom of thought and conscience. It is freedom of expression. A photographer (in which case we all are) needs to know the following about their rights:

It is your right to take pictures in a public space. You may not be within your rights to take pictures of a person who openly objects to you taking their pictures or at a place where it has been expressly stated that taking pictures is prohibited. Take as many pictures you want and capture each passionate moment to your heart’s content. Be wise though, and do not go sticking cameras into people’s faces. You can take pictures without standing out as a photographer. Be invisible, and snap your heart away.

When confronted by the police, be polite. Stay calm. Be courteous. Don’t argue, co-operate. I don’t mean be a dummy or be a fool.

If you are in a public place, do not reasonably expect any privacy. Privacy is relevant in private space, say your home. If you see someone taking your picture in a public place, you can simply walk to them and tell them, “Please do not take my pictures”. But you cannot enforce that on any photographer because there is no law which prohibits that.

If you a member of the press please get a press pass. Whereas it may not save you from being harassed by law enforcers, it will help to emphasize your right to take pictures.

Clear laws should be put in place to determine what amounts to criminal photography. It should cover pictures that glorify (distinguish glorification from exposure) illegal practices like child pornography. More so, there needs to be capacity building for law enforcers on how to interact with the press and un-armed civilians who like taking pictures.

And yesterday was one of those days when I lawyered at no cost. I am happy though, my friend Jamil is out of jail.

BY SAMALI BITALA

This article appears in our digital law newsletter, The Deuteronomy Vol 5, Issue 2 of May 12th, 2017

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